DOCKET NO.
441-R3-791
RICARDO SALINAS
§
BEFORE THE STATE
§
§
VS.
§
COMMISSIONER OF EDUCATION
§
LYFORD CONSOLIDATED
§
INDEPENDENT SCHOOL
§
DISTRICT
§
THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of Case
Petitioner Salinas appeals Respondent's decision to nonrenew his
coaching assignment and assign him solely teaching duties for the 1991-92
school year. Petitioner contends Respondent's decision was made in
retaliation for a presentation he made before Respondent's board of
trustees and, therefore, violates Petitioner's constitutionally protected
right to freedom of speech.
On February 7th, 1992, this case came before Hearing Officer Lorraine J.
Yancey for a hearing on the merits. Petitioner was represented by Dianne
Doggett, Attorney at Law, Austin, Texas. Respondent was represented by
Gus Acevedo, Attorney at Law, San Antonio, Texas. For the reasons cited
in Petitioner's Response to Respondent's Motion For Substantial Evidence
Review, Petitioner is entitled to a de novo hearing.
This appeal involves an employment dispute regarding whether Petitioner
or the Athletic Director, Joe G. Solis, was authorized to make a
scheduled presentation to Respondent's board of trustees on May 14, 1992.
When a public employee speaks as an employee upon matters addressing his
personal employment interests, and not as a citizen upon matters of
public concern, the employee's speech is not protected by the First
Amendment. Additionally, the record fails to reflect that Petitioner has
a property right to continued employment as a coach for the 1991-92
school year. By its terms, the supplemental duty agreement signed by the
parties allowed Respondent to nonrenew Petitioner's coaching duties for
any reason or no reason. Accordingly, on October 5, 1992, the Hearing
Officer issued a Proposal for Decision recommending that Petitioner's
appeal be denied. Exceptions were timely filed and considered.
Findings of Fact
After due consideration of the evidence and matters officially noticed,
in my capacity as State Commissioner of Education, I make the following
Findings of Fact:
1. At all times relevant to this appeal, Petitioner was employed by the
Respondent as a teacher pursuant to a one-year term contract. (Pet. Ex.
10).
2. The Supplemental Duty Agreement signed by Petitioner and Respondent
on August 24, 1990 created no contractual obligations and no expectancy
of continued or of future employment in a supplemental assignment. At
the sole discretion of Respondent, Petitioner's supplemental coaching
duties for the 1990-91 school year could be modified or discontinued at
any time and for any reason. The agreement states:
Ricardo Salinas hereby agrees to perform the supplemental duty of
coaching during the 1990-1991 school year and agrees to work an
additional 10 [ten] days beyond the classroom teacher contract period for
a sum of... $3,028.00.
These noncontractual duties may be modified or discontinued at any time
for any reason at the sole discretion of the District. ...This agreement
does not create any contractual obligation or other expectancy of
employment in the supplemental assignment.
(Pet. Ex. 11).
3. Respondent did not terminate Petitioner's employment as a teacher;
on March 26, 1991, Petitioner signed a one-year teaching contract for
1991-92 school year. (Pet. Ex. 14).
4. Respondent's summer recreation program was included on the board of
trustees' agenda for May 14, 1991 as an matter for discussion by
Superintendent Flores. (Pet. Ex. 15).
5. Petitioner's presentation to the board of trustees concerning
Respondent's summer recreation program was unauthorized; Superintendent
Flores authorized the athletic director, Joe G. Solis, to deliver the
presentation on the same recommendation to the Board. (TR. 145-153).
6. Except for the hourly rate of pay for summer coaches, the content of
Petitioner's presentation was substantially identical to the presentation
intended by Petitioner's supervisor, Joe G. Solis. (TR. 192).
7. By memo dated May 16, 1991, Petitioner was informed by Joe G.
Solis, that his Supplemental Duty Agreement was not among those
recommended for renewal to Superintendent J. A. Flores for the 1991-92
school year because Petitioner's presentation at the May 14, 1991 board
meeting was considered an act of insubordination. The letter stated:
As per our conversation on several occasions within the last two weeks,
I informed you that [Superintendent Flores] had met with me and requested
that I present information to the School Board during its meeting of May
14, 1991 regarding a summer recreation program. I never instructed you
to be a part of the presentation, nor did you inform me that you planned
to address the Board on the matter. Your behavior and rude interruption
when the item was addressed at the meeting were entirely unprofessional
and out of line. Your decision to disregard my instruction at the School
Board meeting will be documented as insubordination. Further, be advised
that I will not recommend that your coaching agreement be renewed for the
1991-92 school year.
(Pet. Ex. 20).
8. By memo dated May 17, 1991, Petitioner was informed by Respondent's
athletic director, Joe G. Solis, that his coaching duties for the
remainder of the 1990-1991 school year were discontinued. (Pet. Ex.
22; TR. 62-63).
9. On June 10, 1991, Respondent's board of trustees adopted
Superintendent Flores' recommendation and voted to nonrenew Petitioner's
supplemental coaching duties for the 1991-92 school year. (Pet. Ex.
25).
10. Petitioner presented no evidence that Respondent's discontinuance
of his supplemental coaching duties for the 1990-91 school year was in
retaliation for Petitioner's exercise of his right to freedom of speech
guaranteed by the Texas Constitution, Article I, §8. (Record).
11. Petitioner presented no evidence that Respondent's decision to
nonrenew his Supplemental Duty Agreement for coaching duties for the
1991-92 school year was in retaliation for Petitioner's exercise of his
right to freedom of speech guaranteed by the Texas Constitution, Article
I, §8. (Record).
Discussion
A State cannot condition public employment on a basis that infringes an
employee's constitutionally protected interest in free of expression.1
Petitioner contends Respondent's decision to discontinue his coaching
duties for the 1990-91 and the 1991-92 school year was retaliation for
his May 14, 1991 presentation to Respondent's board of trustees, in
violation of the Texas Constitution, Article I §8.2 Respondent argues
that its decision was a response to Petitioner's insubordination.
SPEECH AS CITIZEN ON MATTERS OF PUBLIC CONCERN
The threshold question is whether Petitioner's presentation to the board
of trustees should be characterized as constitutionally protected speech
by a citizen on a matter of public concern or speech by a public employee
on matters that address only his personal employment interests. If
Petitioner's presentation to Respondent's board of trustees cannot be
fairly characterized as speech by a citizen on a matter of public
concern, it is unnecessary to examine Respondent's reasons for nonrenewal
of Petitioner's supplemental duty agreement. Connick v. Myers, 461 U.S.
138, 149, 103 S.Ct. 1684, 1691 (1983).
Whether a public employee's speech invokes First Amendment protection so
as to shield the employee from discharge for expressing those views
begins with an analysis of the content, form, and context of the
employee's statement. Id. at 147-48, 103 S.Ct. at 1690-91. Case
precedent on this issue focused on the role of the speaker, identifying a
conflict between the employee's desire to speak out as a citizen on a
matter of public concern and the employer's interest in suppressing the
employee's communication: in Pickering, the Court held impermissible the
dismissal of a high school teacher for openly criticizing the Board of
Education on its allocation of school funds between athletics and
education and its methods of informing taxpayers about the need for
additional revenue; in Mt. Healthy the Court upheld a school teacher's
right to circulate a memorandum to a radio station which expressed the
belief that there was a relationship between a newly adopted dress code
for teachers and public support for bond issues; in Givhan v. Western
Line Consolidated School District, a teacher's private communication with
his employer concerning the school district's allegedly racially
discriminatory policies involved a matter of public concern.
PETITIONER'S ROLE AT THE BOARD PRESENTATION
Absent the most unusual circumstances, an employee's right to freedom of
speech is not protected when he is speaking as an employee on matters
that address only his personal employment situation. Connick v. Myers,
461 U.S. 138, 149, 102 S.Ct. 1684, 1691 (1983). Respondent's summer
recreation program was not a controversial matter. It was listed on the
board of trustees' agenda as an item for discussion on the
Superintendent's Report." Petitioner acknowledges that Superintendent
Flores may have authorized Joe G. Solis, Athletic Director, to give a
presentation on the summer recreation program, but argues that Solis
subsequently delegated that authority to him. Solis testified that he
asked Petitioner to organize and develop the recreation program.
However, Solis denies delegating to Petitioner the authority to deliver
the presentation to Respondent's board of trustees and accuses Petitioner
of insubordination. Clearly, this scenario does not invoke First
Amendment protection as a conflict between the employee's desire to speak
out as a citizen, rather than an employee, on a matter of public concern
and the employer's interest in suppressing the employee's communication.
MATTERS OF PUBLIC INTEREST
"Almost anything that occurs with a public agency could be of concern to
the public." Ayoub v. Texas A & M University, 927 F.2d 834, 837 (5th
Cir. 1991), cert. denied, ___U.S.___, 112 S.Ct. 72, 116 L.Ed.2d 46
(1991) Connick recognized that a presumption that all matters which
transpire within a government office are of public concern would mean
that virtually every remark would plant the seed of a constitutional
case. In the instant appeal we find no indicia of Connick and its
progeny. There is no evidence that Petitioner's presentation sought to
inform the public of a failure of Respondent to discharge its duties;
expose potential wrongdoing or breach of a public trust; evaluate
Respondent's conduct; or voice dissatisfaction with the proposed summer
recreation program.
Petitioner has failed to meet his burden of showing that his board
presentation was constitutionally protected speech. Absent a property
right to a coaching assignment, we need not address Respondent's reasons
for nonrenewal of Petitioner's supplemental duty agreement. Accordingly,
Petitioner's appeal should be denied.
Conclusions of Law
After due consideration of the record, matters officially noticed, and
the foregoing Findings of Fact, in my capacity as State Commissioner of
Education, I make the following Conclusions of Law:
1. The Commissioner of Education has jurisdiction over this appeal
pursuant to Tex. Educ. Code §11.13.
2. Respondent's Motion for Substantial Evidence Review is denied.
3. Respondent's decision to discontinue Petitioner's supplemental
duties as coach for the 1990-91 school year was neither arbitrary,
capricious or unlawful.
4. Respondent's decision to nonrenew Petitioner's Supplemental Duty
Agreement for the 1991-92 school year was neither arbitrary, capricious
or unlawful.
5. Petitioner's May 14, 1991 presentation to Respondent's board of
trustees was not protected by the Texas Constitution, Article I, Section
8.
6. Respondent's decision to discontinue Petitioner's supplemental
coaching duties for the 1990-91 school year was not a violation of
Petitioner's freedom of speech guaranteed by the Texas Constitution,
Article I, §8.
7. Respondent's decision to nonrenew Petitioner's Supplemental Duty
Agreement with coaching duties for the 1991-92 school year was not a
violation of Petitioner's freedom of speech guaranteed by the Texas
Constitution, Article I, §8.
8. Petitioner's appeal should be DENIED.
O R D E R
After due consideration of the record, matters officially noticed and
the foregoing Findings of Fact and Conclusions of Law, in my capacity as
State Commissioner of Education, it is hereby
ORDERED that Petitioner's appeal be, and is hereby, DENIED.
SIGNED AND ISSUED this 11th day of January, 1993.
_______________________
LIONEL R. MENO
COMMISSIONER OF EDUCATION
1. Keyishian v. Board of Regents, 385 U.S. 589, 605-606, 87 S.Ct.
675, 684-85, 17 L.Ed.2d 629 (1967); Pickering v. Board of Education 391
U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Mt. Healthy City Board
of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)
Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983),
Reeves v. County Board of Education, 828 F.2d 1096 (5th Cir. 1987).
2. Article 1, §8, Freedom of speech and press; libel, states in
pertinent part: Every person shall be at liberty to speak, write or
publish his opinion on any subject, being responsible for the abuse of
that privilege....
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